Under what conditions do employers have a legitimate interest in their employees off the job conduct

Alcohol and Tobacco

Employers are highly regulated entities, and off-duty conduct is an area where there are lots of potential traps for the unwary, said John Koenig, an attorney with Barnes & Thornburg in Atlanta.

Some employers may want to refrain from hiring workers who use tobacco and alcohol  in order to promote a healthy workforce and save on any associated costs related to health care and absenteeism. But doing so could get an employer into legal trouble.

In New York, for example, employees can't be fired for consuming legal products—such as tobacco and alcohol—outside of work. It's possible that medical marijuana use could be protected under such laws, Koenig noted.

However, off-duty consumption that carries over into the workday can likely be disciplined. An employee may legally have a beer or martini while clocked out for lunch, but that doesn't mean an employer can't take action if the employee is under the influence at work, said Bruce Millman, an attorney with Littler in New York City.

Furthermore, some state laws have exceptions for employers whose primary purpose is to discourage the public from using such lawful products. In a state with this type of law, for example, the American Lung Association could likely refuse to hire an applicant or could fire an employee who uses tobacco, Delaney said.

Social Media

Personal information about job applicants and employees is only a Google search away, said Hannah Sorcic, an attorney with Reed Smith in Chicago. But state law may limit what employers can search for online.

At least half of the states have laws that restrict an employer from accessing employees' and applicants' personal social media accounts. These laws vary significantly from jurisdiction to jurisdiction, though many prohibit employers from requiring job applicants or employees to disclose their social media usernames and passwords as a condition of employment.

"Therefore, it is extremely important to understand the prohibitions and potential damages of local social media laws before going down the rabbit hole of online information," Sorcic said.

Additionally, employers that discipline workers for their social media activity may run afoul of the National Labor Relations Act (NLRA)—which gives employees the right to engage in protected concerted activity.

Social media use and related policies have been a huge focus of the National Labor Relations Board (NLRB), Koenig said, noting that NLRA rights aren't limited to employees at unionized worksites.

Millman said that the NLRB has found that some social media posts are protected under the NLRA even if they sound disloyal to the business.

For example, employees who post comments on Facebook about their wages or working conditions or "like" co-workers' comments about the same topics are likely engaging in protected concerted activity. An employer could be committing an unfair labor practice if it disciplines an employee for such a post, Millman said.

Employers should carefully review their written policies to ensure that they can't be interpreted as limiting employees' rights under the NLRA. In addition to social media policies, employers should look at their fraternization and other policies that could conceivably limit such rights, he added.

With ever-changing laws and NLRB opinions, it is a challenge to maintain an up-to-date social media policy that complies with federal, state and even local laws, Sorcic noted. She suggested that employers review their social media policies annually. Often, the interests that employers want to protect, such as preventing disclosure of confidential information or preventing employees from speaking on behalf of the employer without authorization, can easily be addressed through other policies, she added.

Moonlighting

Can employers prohibit employees from working a second job? As with most legal matters, the answer is, "It depends."

Though employers may want to ensure workers are focused on their primary job, moonlighting policies are always a bit tricky, Koenig said. Such policies may raise privacy issues.

Focus on the business needs, he recommended. For example, there may be a conflict of interest if an employee wanted to work for a competitor or for a vendor in the same industry.

If employers are afraid that moonlighting will make workers less productive, they should focus on actual performance issues.

It's also fine for employers to prohibit workers from using company equipment for outside activities, Koenig added. For example, employers can say that workers can't use the company car to drive for a ride-share service or use the copier to make flyers for a dog-walking business.  

Best Practices

Employers should understand the specific laws that apply in the jurisdictions where they do business and regularly update their policies accordingly. This can be challenging for multistate employers, as more and more regulations are happening at the state and local levels, Delaney said. 

For ease of administration and to avoid legal risks and mistakes, an employer may want to identify the most restrictive applicable rule on a given issue and adopt that rule across all its locations, she suggested. 

When it comes to off-duty conduct, employers should make decisions based on how the conduct is work-related, Millman said. This is true even in a state where there aren't specific protections for off-duty activities, he noted, because the employer may have to demonstrate a legitimate, nondiscriminatory reason for a termination if a fired employee sues under an anti-discrimination law. 

Before an employee is disciplined or fired for off-duty conduct, it is best to go through the same analysis that applies to any other termination, Koenig said. For example:

• Is the employee at-will?
  
• Is there an employment agreement or collective bargaining agreement that governs the work relationship?
  
• Did the employee engage in protected activity?
  
• What federal, state or local laws might apply to the circumstance?
  

Employers should make sure they have all the facts. They should avoid any knee-jerk reactions and fight the impulse to take any immediate actions, Delaney said. "Employers are always better served when they take the time to assess all of the risk factors involved in such a decision."

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